Land and Environment Court of New South Wales CITATION : Eurobodalla Shire Council v Tip It Today Broulee Pty Ltd [2007] NSWLEC 274 PROSECUTOR PARTIES : Eurobodalla Shire Council DEFENDANT Tip It Today Broulee Pty Ltd FILE NUMBER(S) : 50036 of 2006 CORAM: Pain J KEY ISSUES: Prosecution :- plea of guilty - mitigating circumstances LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s21, s22 Protection of the Environment Operations Act 1997 s124, s143, s244(3), s250(1), Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357; Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 ; Environment Protection Authority v Barnes [2006] NSWLEC 2; CASES CITED: Environment Protection Authority v Barnes [2006] NSWCCA 246 ; Environment Protection Authority v Davis [2005] NSWLEC 643; R v Crombie [1999] NSWCCA 297; R v Sharma (2002) 54 NSWLR 300; R v Thomson; R v Houlton (2000) 49 NSWLR 383 DATES OF HEARING: 1 May 2007 EX TEMPORE JUDGMENT DATE : 1 May 2007 PROSECUTOR Mr T Howard SOLICITOR LEGAL REPRESENTATIVES: DG Briggs & Associates DEFENDANT Mr J Johnson SOLICITOR Home Wilkinson Lowry (Inc. Abbott Tout Lawyers) JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Pain J 1 May 2007 50036 of 2006 Eurobodalla Shire Council v Tip It Today Broulee Pty Ltd EX TEMPORE JUDGMENT 1 Her Honour: The Defendant has been charged with an offence against s 143(1) of the Protection of the Environment Operations Act 1997 (the POEO Act) in that it transported waste to a place that could not lawfully be used as a waste facility for that waste, being the land comprising Lot 17 DP 837412 and Lot 180 DP 868764, known as 607 Tomakin Road, Tomakin, within the local government area of Eurobodalla (the land). 2 According to the charge, the waste comprised discarded, rejected, unwanted surplus and/or abandoned substances, including demolition waste, vegetation, rubble, timber, plasterboard, steel, plastics, cardboard, waste packaging, glass, and other like material, hereafter referred to as building rubble. 3 The Defendant has pleaded guilty and has therefore admitted the essential elements of this offence. I am sentencing the Defendant in these proceedings. 4 The maximum penalty applicable to offences under s143 (1) of the POEO Act is $250,000 for a corporation. While the penalty for this offence has been increased to $1 million since its commission that does not apply to this offence. Facts 5 The parties agreed on a Statement of Agreed Facts. The Defendant is a company which carries on the business of waste transport. It is the proprietor of the business name Eurobodalla Coastal Skips. Mr Damon Jones became a director of the company on 16 January 2003. It was accepted by the Prosecutor that Mr Jones was the alter ego of the company. 6 On 26 February 2004 Mr Jones drove a Hino truck to the land with a skip containing building rubble, including bricks and timber. The building rubble was tipped onto the land. Mr Jones was seen driving away from the building rubble by Mr Campbell, Environmental Health Protection Unit Team Leader for Eurobodalla Shire Council. 7 In early March 2004 Mr Jones returned to the land and removed the building rubble. 8 On 8 March 2004 Mr Campbell returned to the land. He saw that the building rubble had been removed from the land and took a photograph of the relevant area. 9 There was no environmental harm caused by the waste. 10 The owner of the land consented to the waste being transported there. Evidence in relation to other matters 11 The Defendant's sole director Mr Jones gave oral evidence. Mr Jones' evidence was that he thought the waste was a load of bricks only which could be recycled. It transpired that other waste such as timber and rubble was in the load dumped on private property with the consent of the landowner. Counsel for the Defendant tendered several references and other evidence of engagement in community activities by the Defendant. Section 241 of the POEO Act 12 Section 241 factors to be taken into consideration in imposing a penalty (so far as they are relevant) under the POEO Act: (a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence 13 One truck load of inert waste, namely building rubble, was dumped. There is no harm to the environment alleged and no potential for environmental harm. (b) the practical measures that may be taken to prevent, control, abate or mitigate that harm 14 This does not strictly arise given that no harm/potential for harm was identified by the Prosecutor. (c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence 15 Once again, this section does not strictly arise given that no harm/potential for harm was identified by the Prosecutor. (d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence 16 The Defendant accepts that this applies and there is evidence of the sole director Mr Jones that the company has since implemented policies and procedures to ensure there is no repetition. (e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee. 17 Not applicable Objective circumstances Gravity of the crime 18 Regard must be had to the culpability of the Defendant and the individual circumstance which led to the commission of the offence. This is clearly a less serious matter. The sentence must be proportional to the gravity of the crime. 19 The Court is also to have regard to the maximum penalty applicable, as this is an expression of the seriousness Parliament attributes to the offence: see Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698. It stated at 698 and 701 respectively that: The task of a court is to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided… ..the more serious the lasting environmental harm involved the more serious the offence and, ordinarily, the higher the penalty. 20 The seriousness in relation to the factors in s 241 is minor given the lack of any likelihood of environmental harm. General deterrence 21 Sentences made in relation to environmental offences must embrace powerful considerations of general deterrence: see Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357, per Badgery-Parker J at 367. In Axer, Mahoney J stated at 359: The quantum of the fines which the legislation allows to be imposed has no doubt been fixed not merely to indicate the seriousness with which such pollution is regarded but also to deter those engaged in such activities and to procure that they will take the precautions necessary to ensure that it does not occur. 22 The Prosecutor submitted that an important reason for commencing this matter in this Court was to send a message to the community about the unacceptability of this kind of behaviour and it was seeking a publication order under Part 8.3 of the POEO Act. 23 No need for specific deterrence as a penalty consideration was pressed by the Prosecutor and I agree that there is no need. Evenhandedness 24 The principle of evenhandedness requires that the court consider if there is any sentencing pattern for like offences in order to determine a consistent approach to penalty. This principle must always be applied subject to the particular circumstances of the case before the Court. Environment Protection Authority v Barnes [2006] NSWLEC 2 and Environment Protection Authority v Barnes [2006] NSWCCA 246 and Environment Protection Authority v Davis [2005] NSWLEC 643 were referred to by the Defendant in relation to evenhandedness. Arguably both matters were more serious than the offence before me. Both concerned illegal dumping of raw sewage. In Barnes this was on private property without the owner's consent and in Davis dumping occurred in a public reserve. The penalty in Barnes was $4,000 for the first offence, $500 for a second offence applying the totality principle, after a number of mitigating matters were taken into account. In Davis the penalty of $8,000 was reduced to $5,000 after mitigating factors were taken into account. I note that the maximum penalty in both cases was less, being $120,000. This offence is clearly less serious than those matters. Penalty 25 The Prosecutor is seeking a fine in the low range of penalty and also a publication order under s 250(1)(a) of the POEO Act. Under s 244(3) an order may be made under Part 8.3 regardless of whether any penalty is imposed. I consider the circumstances warrant the imposition of a small fine in addition to a publication order. Mitigating factors 26 There are a number of mitigating factors that should be taken into account to reduce the penalty. These are identified in the Crimes Sentencing Procedure Act 1999 s 21A(3) in part. 27 As referred to in s 21A(3)(a) the harm caused by the offence is not substantial. Guilty plea (s 22, s 21A(3)(k) Crimes (Sentencing Procedure) Act) 28 The Defendant pleaded guilty at an early date. A plea of guilty entitles the Defendant to a discount in penalty under s 22 of the Crimes (Sentencing Procedure) Act 1999 in the range of 10-25 per cent: R v Thomson; R v Houlton (2000) 49 NSWLR 383; R v Sharma (2002) 54 NSWLR 300. The Prosecutor accepts that there has been a guilty plea at the earliest opportunity. I consider a substantial discount for a plea of guilty should apply. 29 The Defendant has expressed contrition and remorse through the oral evidence of Mr Jones and I accept his statement to that effect. I also note that the Defendant promptly removed the waste the subject of this offence that was dumped. (s 21A(3)(i) Crimes (Sentencing Procedure) Act) 30 There has been full cooperation with the Prosecutor in relation to the incident, see par 12 of Statement of Agreed Facts (s 21A(3)(m), s 23 Crimes (Sentencing Procedure) Act). 31 The Defendant does not have any prior convictions (s 21A(e) Crimes (Sentencing Procedure) Act). I also consider the Defendant is unlikely to reoffend given the policies and procedures implemented since the offence was committed (s 21A(3)(g) Crimes (Sentencing Procedure) Act). 32 The Defendant has relied in its evidence on four references for Mr Jones and his company business of Eurobodalla Coast Skips made by persons aware that the references would be used in these proceedings. They attest to Mr Jones and the Defendant's good character and involvement in local community activities such as Clean Up Australia Day on numerous occasions. Certificates from the Prosecutor for participating in Clean up Aust Day were also provided. I accept that the Defendant is of good corporate character (s 21A(3)(f) Crimes (Sentencing Procedure) Act). 33 The Defendant has agreed to pay the Prosecutor's costs. These are advised by the Prosecutor to be approx $20,000, a substantial sum given the circumstances of this offence and the early plea of guilty. I consider I should take this matter into account as occurred in Barnes at first instance, an approach upheld by the Court of Criminal Appeal at [78], [88] per Kirby J (Mason P and Hoeben J concurring). 34 The Defendant also argued that I should take into account the fact that this matter could have been prosecuted in the Local Court. This was also a matter taken into account in Barnes at first instance. This approach was upheld by the Court of Criminal Appeal in Barnes at [56]. I consider that is a relevant consideration on sentencing in this matter given "the objective and subjective criminality of the offender", per Kirby JA in Barnes adopting the phrase of Wood CJ at CL in R v Crombie [1999] NSWCCA 297. As was submitted before me in Barnes, proceedings in the Local Court are generally less costly and can be dealt with locally, without therefore requiring a defendant to incur the costs and inconvenience of a hearing in Sydney. 35 Finally the Defendant's counsel argued I should consider the imposition of a publication order as a relevant factor in setting the amount of penalty as part of the "weighing up" exercise the Court must undertake. I agree. 36 The Defendant also argued that it has limited means to pay relying on s 6 of the Fines Act. The Court was provided with some financial information about the Defendant for the last financial year (2006) which shows it had an income of approx $46,000 before tax. This reflects a weekly income after tax of about $600 per week. Mr Jones the director considered there would be some capacity for the company to raise a loan to pay a fine but did not know how much given that the business had only operated for three years and still had substantial debts. Information about the personal income of Mr Jones was also provided in the form of his tax return for the last financial year. I do not consider I can take into account Mr Jones financial position to any great degree given that he is not the Defendant. The company has capacity to pay a small fine in my view. 37 In light of all the mitigating circumstances I take into account, I consider that the Defendant's penalty should be substantially discounted and consider that a fine of $1,500 is appropriate. Orders 38 The Court orders that: 1. The Defendant is convicted of the offence with which it is charged. 2. The Defendant is fined the sum of $1500 to be paid to the Registrar of the Court within 28 days of today's date. 3. The Defendant must pay the Prosecutor's costs of the proceedings as agreed in the sum of $18,500. 4. Within 14 days, the Defendant cause to be published in the first 8 pages of the Batemans Bay Post a notice in the form annexed and marked "A" at a minimum size of one quarter page. 5. The exhibits may be returned. A Tip it Today Broulee Pty Ltd trading as Eurobodalla Coast Skips On 1 May 2007, Tip it Today Broulee Pty Limited trading as Eurobodalla Coast Skips was convicted in the Land and Environment Court of New South Wales for transporting waste to a place that could not lawfully be used as a waste facility for that waste on 26 February 2004. This was an offence against s143 of the Protection of the Environment Operations Act. The offence involved an unlawful transport of building and demolition waste to premises at Tomakin Road at Tomakin. The Court ordered the company to pay fines and costs totalling $20,000. The disposal of the waste at the premises was unlawful because development consent from Eurobodalla Shire Council for the use of that land as a waste facility was required, but no such consent had been obtained. Tip it Today Broulee Pty Limited was prosecuted by the Eurobodalla Shire Council and agreed to an order by the Land and Environment Court to place this notice in the Batemans Bay Post. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.